Menzel v Corex Plastics (Aust) Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Menzel v Corex Plastics (Aust) Pty Ltd [1999] FCA 1218

PRACTICE AND PROCEDURE – transfer of proceedings – balance of convenience

Federal Court of Australia Act 1976 (Cth) s 48

National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 applied

GREGORY JAMES MENZEL V COREX PLASTICS (AUST) PTY LTD

S 7154 OF 1999

JUDGE:         FINKELSTEIN J
DATE:           1 SEPTEMBER 1999
PLACE:         ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 7154 OF 1999

BETWEEN:

GREGORY JAMES MENZEL
Applicant

AND:

COREX PLASTICS (AUST) PTY LTD
Respondent

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

1 SEPTEMBER 1999

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant to pay the respondent’s costs of and incidental to the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 7154 OF 1999

BETWEEN:

GREGORY JAMES MENZEL
Applicant

AND:

COREX PLASTICS (AUST) PTY LTD
Respondent

JUDGE:

FINKELSTEIN J

DATE:

1 SEPTEMBER 1999

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. The applicant, Gregory James Menzel, entered into a composition under Part X of the Bankruptcy Act 1966 (Cth) on 1 July 1999. A creditor of the applicant, Corex Plastics (Aust) Pty Ltd (“Corex Plastics”), has applied to set aside the composition or to have it terminated. That application has been brought in the Victoria District Registry of the Court.

  2. The applicant asks for an order that the proceeding to set aside or terminate the composition be transferred to the South Australia Registry of the Court. The power to make such an order is to be found in s 48 of the Federal Court of Australia Act 1976 (Cth) which provides:

    “The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.” 

  3. It is also necessary to refer to O 10 r 1(2)(f) and O 30 r 6 of the Federal Court Rules.  The first of these rules gives the Court power to direct that a proceeding be transferred from one registry to another, and the second rule permits the Court to direct the trial of a proceeding to take place at a particular place. 

  4. The test to be applied on an application to transfer a proceeding is that stated by the Full Court in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155. In that case the Full Court said the discretion whether to transfer a proceedings “should be exercised flexibly having regard to the circumstances of the particular case.”

    The Full Court said (at 162) that the test was:

    “ … where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of…

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Details
Case
[1999] FCA 1218
Decision Date

CaseChat Overview and Summary

Menzel, the applicant, sought to set aside a judgment entered against them in favour of Corex Plastics (Aust) Pty Ltd, the respondent. The primary dispute concerned the validity of a settlement agreement between the parties, and the application was heard in the Supreme Court of New South Wales. The applicant argued that the settlement agreement was void due to the respondent's alleged misrepresentations and coercion, while the respondent maintained that the agreement was valid and enforceable. The court was tasked with determining whether the applicant had established grounds for setting aside the judgment based on the alleged misrepresentations and coercion.

The court examined the evidence presented by the applicant to support their claims of misrepresentation and coercion. The applicant argued that the settlement agreement was signed under duress and that the respondent had made false representations about the enforceability of the agreement. The court considered the applicant's evidence, including affidavits and witness statements, and also reviewed the settlement agreement itself. The court concluded that the applicant had not provided sufficient evidence to establish the alleged misrepresentations and coercion. The court found that the applicant had not demonstrated a basis for setting aside the judgment, and dismissed the application.

In dismissing the application, the court ordered that the applicant pay the respondent's costs of and incidental to the application. The court found that the applicant's application was frivolous and without merit, and that the respondent had been forced to defend an unfounded challenge to the judgment. The court's decision upheld the validity of the settlement agreement and the judgment entered in favour of the respondent.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant to pay the respondent’s costs of and incidental to the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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